Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Tuesday, July 28, 2009

Witnesses in day two of Sony v. Tenenbaum

BY MARC BOURGEOIS

Wade Leak

Wade Leak of Sony BMG Music Entertainment began by describing what the record companies do. They find new music, work with artists to match these artists with songwriters and producers and described the basic process of working with an artist to produce an album. He stated that the record companies primary source of revenue is sale of record albums and online sales of the tracks that they produce.

He states that he is familiar with the songs Sony and Arista are suing over in the case. He identifies three songs that MediaSentry downloaded and four additional songs which the copyrights were owned by his companies in this case. He stated that Sony registered all the copyrights of these recordings and described the content of the certified copy of the copyright registration from the copyright office. He stated that Sony has the exclusive right to these songs and that they were sold in albums and also sold digitally.

He then described that MediaSentry was hired to gather evidence of online infringement and that MediaSentry found a user, sublimeguy14@KaZaA distributing these songs. MediaSentry downloaded all of the three songs he initially identified, he listened to these tracks and determined that they were identical to the songs that are sold by his companies. He described the process of using a John Doe suit to obtain the subscriber information for the IP address MediaSentry identified from Cox Communications and sent a letter to J. Tenenbaum to put him on notice of a copyright infringement claim. He then described the screenshots of the sublimeguy14@KaZaA’s shared folder and identified many works that are owned by Sony that they are not pursuing claims on in this case. When asked why they were not pursuing claims on all these files he stated that they were pursuing claims on a “reasonable” number of songs. He stated that he wanted fans to buy his companies music, and that copyright is instrumental in making this happen.

He was asked why they were suing individuals in this manner. He described their initial attempts to go after file sharing services, as well as PR efforts that the recording industry attempted. Eventually they decided to go after individuals engaging in file sharing because they had no choice. He stated that he wanted people to love music, but he also wanted them to pay for it. He likened the activity to shoplifting, but in the digital universe. He stated that they do not make money from these cases, because their expenses exceed any settlements they get through them. He said that the reduced revenue due to lost sales has led to numerous job losses at Sony. The stated that many people feel file sharing is a victimless offense, but the victims are those at Sony who have lost their jobs in recent years. He stated that Sony is seeking statutory damages in this case and does not have a number in mind of damages they would like to see awarded.

On cross examination Professor Nesson asked Mr. Leak about how they hired MediaSentry and how thew coordinated with the RIAA, and again asked about the issue of money in these cases. Mr. Leak repeated that their expenses exceed any settlements they receive and that the goal in the campaign is education. He stated that most settle these claims before there is even a suit. He then asked about why Sony did not sue on all the files they saw in the shared folder, and he again repeated the intent to pursue a reasonable number. He did state that each was infringement and was willful, and they could have sued on many more songs.

Professor Nesson then focused on the issue of revenue. He focused on the numbers from several albums that showed that the revenue figures show a much greater amount of gross revenue from album sales than from the sales of digital tracks as a general trend in all of the revenue information for Sony tracks that he is asked to look at. He was asked to describe the digital services that were available in 2004.

He was also asked to describe the difference between the songs listed on the first exhibit of five and the other twenty-five identified, after which he brought up the issue of spoofed songs being available on file sharing networks. He asked if the songs that were not fully downloaded could be so-called “spoof” songs put out on file-sharing services to discourage people from using them. Mr. Leak stated that their spoofing efforts were only focused on front-line releases, and that they would not have been directed at these tracks because they were all catalog tracks. Mr. Leak stated that each of the songs in the shared folder represents a displaced sale and that the shared folder was evidence that these files were available for potentially millions of people free. He then again described in a way he attempted to under direct examination that was objected to, the difficulty of his business competing with a marketplace where music is available as described for free and likened it to being in the business of selling televisions where a truck pulls up outside your store and begins giving away televisions for free.

Mr. Nesson then attempted to proceed down a line of questioning regarding Sony’s ownership of Michael Jackson copyrights, which is quickly shut down by Plaintiffs sustained objections to the questions.

He then asked about the labels no longer initialing new cases. Mr. Leak stated that he was not involved in the decision regarding not pursuing new cases, but stated that they were still continuing with cases that had already begun. He also stated that they reserve the right to start new cases at any time.

Professor Nesson’s questions then wrapped up asking about what damage he thought was appropriate, and the answer was just that he wanted an award that was relative to his culpability and that his activity showed a blatant disregard for copyrights.

On redirect Mr. Oppenheim returned to the issue of revenue. Mr. Leak described the life cycle of a track and described different events that could cause a boost in sales at various times, such as the track being used in a movie or television show or a greatest hits album being released that would explain some of the variations in revenue numbers that were shown earlier.

He then described the lower amounts shown for digital sales were in part due to piracy, in part to it being new technology, and in part due to the figures only being for the specific tracks being sold, and not being full albums.

Chris Connelly

Mr. Connelly identified himself as an employee of MediaSenty/MediaDefender. He described his work as to protect the copyrights of his clients, specifically in cases such as these, to search peer to peer networks as any other user would do for their clients copyrighted works. He described the process of installing KaZaA from KaZaA.com and the initial configuration process where the user self-selects a username and sets up a shared folder. He described the process of searching for files, selecting them, and downloading them. He described their process as something any other user would do, with the exception that they collect evidence of what is done, such as the packets that are transferred between MediaSentry and KaZaA users and the collection of screenshots produced by their process. He also testified that their process had a 'zero-error rate', meaning they had no examples of cases where the data they collected turned out to be erroneous.

He then described the evidence that they found, such as the screenshots of the sublimeguy14@KaZaA shared folder. He described the user log that they created which showed the meta-data they were able to transfer from over 800 files in this shared folder. He also described the data log showing packets between a Cox Communications IP address and MediaSentry. He was brought many pages of these logs showing mp3 files, kpl files, and MetaData collected about them. He testified that most of these files most likely did not come from ripped CDs due to disparities in format of meta-data, varying bitrates, et. cetera. which indicated that they most likely came from different originating sources throughout the internet. One part of the data log showed a portion where the sublimeguy14@KaZaA computer did not respond to several requests, which he described as 'most likely because the computer was busy' and the requested file then starting to download from a different PC. He described this process as part of the way KaZaA worked. He did testify that he had no evidence of other transfers between sublimeguy14@KaZaA and any other party, because peer-to-peer software does not show these activities taking place.

On cross-examination he again admitted he had no evidence of any other transfers and Professor Nesson focused on some tracks that had meta-data indicating they were ripped by someone named 'havok', he asked if he had ever seen any songs indicating they came from sublimeguy14 in any other case, to which he indicated he had not, but that since none of the metadata from this shared folder had that name in them that even if he had seen files that came from this shared folder in any other case they would not contain that name.

The questioning then turned to the issue of impact. He went back to the multi-source downloading testimony and asked that if someone had attempted to download the songs and sublimeguy14's computer refused to provide them that this would not have likely been an impediment to anyone else recieving the files. Mr. Connelly stated that other users probably could have recieved the files from other sources if sublimeguy14's computer did not provide them. Professor Nesson then stated that the fact that if Joel shared that it didn't change the picture much, given that so many users are online with KaZaA at any given time.

Professor Nesson then went to the issue of distribution. He described distribution as a word that has an active component as in 'a distributor'. He asked what actively Joel would have had to do to distribute the files after they were downloaded to a shared folder. Mr. Connelly stated that nothing needed to be done, when asked if it was someone else that had to actively request the files in the shared folder after Joel 'left them there' Mr. Connelly agreed.

Mark Matteo

Mr. Matteo works for Cox Communications and stated he had no relation to Plaintiffs in the case. He stated that his group at Cox was involved in the subpoena served on this case requesting subscriber information for specific IP addresses at specific dates and times. He described Cox's process for checking multiple systems to tie this information together with subscriber data and that both their technical and billing systems came back with the same information in this case, that the subscriber indicated by the IP address and date and time in question was a J. Tenenbaum of Providence, RI.

He stated that Cox sent a letter to the subscriber indicating that someone had subpoenaed information about their service in a civil case. He also pointed out when asked about specific sections in the Cox Acceptable Use policy in regards to copyright. He stated that he had no doubt that Cox identified the correct subscriber in this case.

On cross examination Mr. Matteo was asked about the letter he sent, which had the language that a lawsuit had already been filed in comparison to the initial letter sent by Plaintiffs indicating that they file a case if the issue was not resolved. Professor Nesson asked Mr. Matteo about the case Fonovisa v. Does 1-76 in which the subpoena was issued. He also asked Mr. Matteo about the subscriber name of J. Tenenbaum, and introduced Joel's mother Judith Tenenbaum.

James Chappel

Mr. Chappel is a high school friend of Joel. He was asked by Plaintiffs about the PC in Joel's Providence home located in Joel's bedroom. He was asked if he'd ever used it, to which he had indicated that he had used it to check e-mail on rare occasion while he was in high school. He was asked if he'd ever used KaZaA on the PC or any other in the Tenenbaum home, to which he said he had not. He testified that he had never used the sublimeguy14 username, knew what filesharing was, and had seen some 'blank' CDs in Joel's bedroom while he was in high school. He also testified that he had heard Joel brag about obtaining music free on the internet while he was in high school.

On cross-examination Professor Nesson asked if he was mad at Joel for implying he may have used KaZaA on the computer in his bedroom. At first Mr. Chappel was hesitant to answer, but did indicate he was annoyed by the fact. He testified that he had not been deposed in the case, but did 'sign something' for Plaintiffs. After a sidebar conference a letter written to Plaintiffs by Mr. Chappel was introduced indicating that he had often heard Joel brag in high school about always having the latest music and getting it from the internet. He indicated he wrote the letter along with a statement he was sent by Plaintiffs and signed that was written 'in their words' because he felt he wanted to submit something that he wrote in his own words.

Dr. Arthur Tenenbaum

Joel Tenenbaum's father was the last live witness of the day, being asked by Plaintiffs mostly yes or no questions about artists his son liked, and whether or not he had ever seen Joel use KaZaA. He testified that he had seen Joel use KaZaA and even was shown by him the process of using it at one point to try to obtain music that was more in his fathers taste. He also indicated that he had called Joel after reading about lawsuits during Joel's freshman year of college to caution Joel not to do it. He testified that Joel had told him that you would only be sued if you 'did it a lot'.

Tova Tenenbaum and Abagail Nathan

Deposition testimony was read from Tova Tenenbaum and Abagail Nathan, Joel's younger and older sister. Both testified about Joel's music tastes and that they never saw anyone else use the computer for downloading music and had never done so themselves. Tova indicated that in Joel's car which she now drove he left several burned CDs.

3 comments:

Defendants co-counsel did object to some of the questions, specifically I remember (sustained) objections to questions where Mr. Leak was trying to introduce the free television analogy, which eventually got brought up in the cross anyway. I'll look through my notes and try to remember the objections more specifically.

These were objections based on testimony Plaintiffs were attempting to elicit about the overall market for music in the changing digital environment on the basis that Mr. Leak wasn't an expert in economics.

There were some overruled objections on questioning related to why Plaintiffs made the decision to pursue the specific number of songs that they did.

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"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove